Date: 20090513
Docket: T-536-04
Citation: 2009 FC 497
Toronto, Ontario,
May 13, 2009
PRESENT: The
Honourable Mr. Justice Mosley
BETWEEN:
OMAR AHMED KHADR by his Next Friend
FATMAH
EL-SAMHAH
Plaintiff
and
HER
MAJESTY THE QUEEN
IN
RIGHT OF CANADA
Defendant
REASONS FOR ORDER AND ORDER
[1]
This is a motion in writing pursuant to Rule 369
of the Federal Courts Rules, SOR/98-106 for an
order granting the plaintiff leave under Rule 75 to file an Amended Amended
Statement of Claim. The principal object of the motion is to reintroduce a
claim under section 12 of the Canadian Charter of Rights and Freedoms,
Part 1 of the Constitution Act, 1982, being Schedule B to the Canada
Act 1982 (U.K.), 1982, c. 11 (“Charter”). A number of other
non-controversial changes are proposed. The defendant consents to all of the
proposed amendments except the section 12 claim.
[2]
The action was initiated in March 2004 alleging
breaches of sections 6, 7, 10(a), 10(b), 10(c), 11 and 12 of the Charter.
In August 2004, the defendant brought a motion to strike the Statement of Claim
arguing, in relation to the section 12 Charter claim, that it could not
constitute a head of liability against the Crown in right of Canada as the
alleged mistreatment or punishment occurred outside of Canada in a territory
under the control of the government of the United States of America.
[3]
At the hearing of the 2004 motion, counsel for
the plaintiff acknowledged that they were not in possession of information to
support a claim based on section 12. Accordingly, it was withdrawn and the
Statement of Claim was amended: Khadr v. Canada (Attorney General), 2004 FC
1394. At the time of this decision, the plaintiff and his counsel had never met
as the plaintiff was being detained under strict conditions at the US military facility at Guantánamo Bay, Cuba, which did not permit
confidential solicitor-client communications.
[4]
On June 25, 2008, this Court released a decision
ordering the disclosure of documents which confirmed that a Canadian official
had been advised prior to interviewing the plaintiff in March of 2004 that he
had been subjected to a sleep deprivation regime known as the “frequent flyer
program”: Khadr v. Attorney General, 2008 FC 807.
[5]
At paragraph 88 of my reasons, I found that the
regime was a breach of international human rights law respecting the treatment
of detainees under the United Nations Convention against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment, Can. T.S. 1987 No. 36 and the 1949
Geneva Conventions. I concluded that Canada became implicated in the violation of the plaintiff’s rights under
those instruments when the Canadian official was provided with the information
about the practice and chose to proceed with the interview.
[6]
The plaintiff argues that the circumstances
under which he was being held at Guantánamo precluded his counsel from
obtaining the information from him to support a section 12 claim at that time.
Moreover, while the information was in the possession of the defendant, the
claims of privilege asserted by the defendant also prevented the plaintiff from
obtaining the information until the June 2008 decision was issued. The
plaintiff now wishes to add a claim that by interviewing him with knowledge
that he had been subjected to the “frequent flyer program”, the Crown violated
section 12 of the Charter.
[7]
The defendant submits that nothing material has
changed since the 2004 motion was dealt with. She contends that the plaintiff’s
proposed new paragraph 4(j) merely particularizes the allegations of knowledge
on the part of Canadian officials that the plaintiff was mistreated by
officials of the US government
and that other proposed changes are merely descriptive. The defendant submits
that the proposed amendments should not be allowed because they could not
succeed at trial.
[8]
The allegations in question would not support a
claim under section 12, the defendant submits, as the mistreatment was under
the control of US authorities: R. v. Terry, [1996] 2 S.C.R. 207. Even if
section 12 could be said to have an application to the actions of Canadian
officials interviewing the plaintiff following his mistreatment by the US
military, those actions could not be said to amount to cruel and unusual
treatment as contemplated by section 12: United States of America v. Burns,
[2001] 1 S.C.R. 283; Rodriguez v. British Columbia (Attorney General),
[1993] 3 S.C.R. 519. This action presently alleges a breach of section 7 of the
Charter. The defendant submits that this is the appropriate provision
under which to address questions of rights violations by other governments and
their officials in which there may be links to Canadian actions: Burns,
above, at paragraphs 55 and 57.
[9]
There is no disagreement between the parties as
to the test to determine whether to allow an amendment to the pleadings. The
general rule, as set out in Canderel Ltd. v. Canada, [1994] 1 F.C. 3, is
that an amendment should be allowed at any stage of an action for determining
the real questions in controversy provided it would not result in injustice to
the other party which is not capable of being compensated for by an award of
costs and the amendment would serve the interests of justice.
[10]
In Airth v. Canada (Minister of National
Revenue – M.N.R.), 2007 FC 1334, Mr. Justice Michael Phelan re-iterated
this overarching liberal approach and cited paragraph 12 of the Canderel
decision, which reads, in part:
Ultimately it
boils down to a consideration of simple fairness, common sense and the interest
that the courts have that justice be done.
[11]
On a motion for leave to amend, a party need not
prove its case. Rather, the court must assume that the facts pleaded are true,
and deny an amendment only in a plain and obvious case where the situation is
beyond doubt: Pembina County Water Resource District v. Manitoba, 2008
FC 1390; Dené Tha’ First Nation v. Canada (Attorney General), 2008 FC 679.
[12]
I note that my colleague Mr. Justice James
O’Reilly recently discussed the participation of Canadian officials in the
treatment of the plaintiff at Guantánamo in Khadr v. Canada (Prime Minister), 2009 FC 405 and held the following at paragraph 83 of his reasons:
The
respondents emphasize the fact that the mistreatment of Mr. Khadr was carried
out by non-Canadians. Under s. 7, "the guarantee of fundamental justice
applies even to deprivations of life, liberty or security effected by actors
other than our Government, if there is a sufficient causal connection
between our Government's participation and the deprivation ultimately effected"
(Suresh, above, at para. 54). Here, the necessary
degree of participation is found in Canada's interrogation of Mr. Khadr knowing that he had been
subjected to treatment that offended international human rights norms to which Canada had specifically committed itself. [Emphasis added]
[13]
Justice O’Reilly’s comments make reference to the principles enunciated
in Suresh v. Canada (Minister of Citizenship and Immigration),
2002 SCC 1, at paragraph 54. I also find paragraph 55 in Suresh instructive:
We
therefore disagree with the Federal Court of Appeal's suggestion that, in
expelling a refugee to a risk of torture, Canada acts only as an "involuntary intermediary"
(para. 120). Without Canada's action, there would be no risk of torture. Accordingly,
we cannot pretend that Canada is merely a passive participant. That is not to say, of
course, that any action by Canada that results in a person being tortured or put to death
would violate s. 7. There is always the question, as there is in this case,
of whether there is a sufficient connection between Canada's action
and the deprivation of life, liberty, or security. [Emphasis added]
[14]
The comments quoted above apply to the question
of whether section 7 of the Charter is
implicated in relation to the actions of foreign governments and, as the
defendant submits, a claim under that provision is already part of the action.
The issues with respect to the application of section 12 of the Charter are
different. This is not a case where the plaintiff was directly subjected to
cruel and unusual treatment or punishment by Canadian officials. Nonetheless,
the plaintiff may also be able to establish a sufficient causal connection
between the actions of the Canadian officials and the treatment he experienced
at the hands of the American military. The information disclosed last year was
to the effect that he was subjected to sleep deprivation in
preparation for the visit of the Canadian officials, to soften him up for their
interrogation.
[15]
While the question is not without doubt, it is not plain and obvious
that a claim under section 12 in this matter is futile. Moreover, the defendant
has not put forward any argument that allowing the requested amendments would
result in an injustice not capable of being compensated by an award of costs.
Accordingly, I am satisfied that the amendments should be allowed.
ORDER
THIS COURT
ORDERS that:
1. The plaintiff is granted leave to file an Amended Amended
Statement of Claim in the form set out at Tab B to the plaintiff’s motion
record; and
2. The plaintiff is awarded his costs of this motion payable in any
event of the cause.
“Richard G. Mosley”
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